Detailed analysis of section 169 crpc
34.Section 169 of the CrPC reads as under:
“169. Release of accused when evidence deficient: –
If, upon an investigation under this Chapter, it appears to the officer in charge of the police station that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report, and to try the accused or commit him for trial.”
Section 169 crpc: I.O can release a person on custody on executing a bond
35.The perusal of the aforesaid Section would reveal that the Investigating Officer is under an obligation to release such person, who is in custody on executing a bond with or without sureties, if evidence is not sufficient and/or there are no reasonable grounds of suspicion to forward such person to the Magistrate.
36.The plain reading of Section 169 of the CrPC, therefore, postulates that when the Investigating Officer reports his action to the learned Magistrate, it will not be a report, however it will be a report of his action either by the Investigating Officer or by the Officer in-charge of the police station.
37.Section 173 of the CrPC states about the steps to be taken by the Investigating Officer after the completion of the investigation. The Officer in charge of the police station is required to forward the report under said Section to the Magistrate empowered to take cognizance of the offence in prescribed form.
I.O has to forward the final report only under section 173 crpc and not under section 169 crpc
39.Thus, Section 169 of the CrPC is silent in making report to the Magistrate, however the Investigating Officer is under an obligation to submit its report to the Magistrate under Section 173 of the CrPC. Thus, though Section 169 of the CrPC does not contemplate making a report, it contemplates of obtaining a bond with or without sureties from the accused to appear if and when so required before the Magistrate empowered to take cognizance of the offence on a police report and such report is contemplated under Section 173 of the CrPC. Clauses (d) and (f) of Section 173(2)(i) of the CrPC read as under:
“173(2)(i) xxx xxx
(d) whether any offence appears to have been committed and, if so, by whom;
xxx xxx xxx
(f) whether he has been released on his bond and, if so, whether with or without sureties”.
Evolution of Further investigation
40.Section 173(8) of the CrPC deals with further investigation and supplementary report. In the Code of Criminal Procedure, 1898 (for short, ‘the Old Code’), there was no identical provision to that of Section 173(8) of the CrPC. The same is a newly added provision in the CrPC. It was added on the recommendation of the Law Commission in its 41st Report that the right of the police to make further investigation should be statutorily affirmed.
41.In the Old Code, there was no provision prescribing the procedure to be by the police for fresh investigation, when fresh facts came to light, upon the submission of the police report and subsequent to taking cognizance by the Magistrate. There was, also, no express provision prohibiting further investigation by the police.
42.The said omission was sought to be supplied for the first time by a two- Judge Bench of the Madras High Court as early as in 1919 in Divakar Singh v. A. Ramamurthi Naidu reported in AIR 1919 Mad 751, where it was observed that:
” Another contention is put forward that when a report of investigation has been sent in under Section 173 of the Cr PC, the police has no further powers of investigation, but this argument may be briefly met by the remark that the number of investigations into a crime is not limited by law and that when one has been completed another may be begun on further information received.”.
43.After recognition of the right of the police to make repeated investigations under the Old Code in Divakar’s case, a three-Judge Bench of this Court in H.N. Rishbud v. State of Delhi reported in AIR 1955 SC 196, held that:-
“It does not follow, however, that the invalidity of the investigation is to be completely ignored by the Court during trial. When the breach of such a mandatory provision is brought to the knowledge of the Court at a sufficiently early stage, the Court, while not declining cognizance, will have to take the necessary steps to get the illegality cured and the defect rectified, by ordering such reinvestigation as the circumstances of an individual case may call for. Such a course is not altogether outside the contemplation of the scheme of the Code as appears from Section 202 under which a Magistrate taking cognizance on a complaint can order investigation by the police. Nor can it be said that the adoption of such a course is outside the scope of the inherent powers of the Special Judge, who for purposes of procedure at the trial is virtually in the position of a Magistrate trying a warrant case.”
44.Some High Courts were also of the view that with the submission of a chargesheet under Section 173, the power of the police to investigate into an offence comes to an end and the Magistrate’s cognizance of the offence started. For instance, in State v. Mehar Singh and Ors. reported in 1974 Crl LJ 970, a Full Bench of the High Court of Punjab and Haryana held that the police became functus officio once the Court took cognizance of an offence on the filing of a chargesheet by the police and thereafter, further investigation by the police was not permissible.
Further investigation: under the Old code Magistrate has power to suspend cognizance
45.It was, however, observed that in light of the decision in H.N. Rishbud (supra), it would be open to the Magistrate to ‘suspend cognizance’ and direct the police to make further investigation into the case and submit a report.
Further investigation was introduced in the under section 173(8) Crpc 1973
46.The said inconsistency and incongruity in the judicial decisions was recognized by the Law Commission in its 41st Report (under Clause 14.23) and it was recommended that the right of the police to make further investigation should be statutorily affirmed. Accordingly, in the CrPC, Section 173(8), came to be introduced, which statutorily empowered the police to undertake further investigation after submission of the final report under Section 173(2) of the CrPC. Conspicuously, it still did not confer such powers on the Magistrate to direct further and/or fresh investigation after submission of the final report by the Police.
Final report or challan or charge sheet
47.”………………..” Sub section (1) of Section 173 of the CrPC provides that every investigation by the police shall be completed without unnecessary delay and sub section (2) of Section 173 of the CrPC provides that as soon as such investigation is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government. Under sub section (2) of the Section 173 of the CrPC, a police report (chargesheet or Challan) is filed by the police after investigation is complete.
Sub section (8) of Section 173 of the CrPC, states that nothing in the section shall be deemed to preclude any further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate.
Thus, even where chargesheet or Challan has been filed by the police under sub section (2) of Section 173 of the CrPC, the police can undertake further investigation in respect of an offence under sub section (8) of Section 173 of the CrPC. (Reference: Article titled “Different Aspects of Section 173(8) of the CrPC” by D. Nageswara Rao, Prl.JCJ, Manthani.)
What is the meaning of the term ‘Further Investigation”?
48.In Rama Chaudhary Vs. State of Bihar reported in (2009) 6 SCC 346, this Court held that, “further investigation within the meaning of provision of Section 173(8) CrPC is additional; more; or supplemental. “Further investigation”, therefore, is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether.”
What are the alternatives before a Magistrate when a “Final report” is being filed?
49.Wherever a final report forwarded by the Investigating Officer to a Magistrate under Section 173(2)(i) of the CrPC is placed before him, several situations may arise. The report may conclude that an offence appears to have been committed by a particular person and persons, and in such a case the Magistrate may either:
(1) accept the report and take cognizance of offence and issue process,
(2) may disagree with the report and drop the proceeding or may take cognizance on the basis of report/material submitted by the investigation officer,
(3) may direct further investigation under Section 156(3) and require police to make a report as per Section 173(8) of the CrPC.
(4) may treat the protest complaint as a complaint, and proceed under Sections 200 and 202 of the CrPC.
What is the prime consideration for ‘Further Investigation’?
50.As observed in Hasanbhai Valibhai Qureshi v. State of Gujarat and Others reported in (2004) 5 SCC 347, the prime consideration for further investigation is to arrive at the truth and do real and substantial justice. The hands of investigating agency for further investigation should not be tied down on the ground of mere delay. In other words, the mere fact that there may be further delay in concluding the trial should not stand in the way of further investigation if that would help the court in arriving at the truth and do real and substantial and effective justice.
Difference between ‘further investigation’ and ‘re-investigation’: Explained
51.There is no doubt that “further investigation” and “re-investigation” stand altogether on a different footing. In Ramchandran v. R. Udhayakumar and Others reported in (2008) 5 SCC 413, this Court has explained the fine distinction between the two relying on its earlier decision in K. Chandrasekhar v. State of Kerala and Others reported in (1998) 5 SCC 223.
Judgments regarding ‘further investigation’ discussed
After considering King-Emperor v. Khwaja Nazir Ahmad (Vol. LXXI Indian Appeals, 203 Privy Council);
Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwanandha Maharaj v. State of A.P. and Others reported in (1999) 5 SCC 740 (para. 10 & 11);
Hemant Dhasmana v. Central Bureau of Investigation and Another reported in (2001) 7 SCC 536 (para. 15 & 16);
Union Public Service Commission v. S. Papaiah and Others reported in (1997) 7 SCC 614;
Ram Lal Narang v. State (Delhi Administration) reported in (1979) 2 SCC 322 (para.21);
State of Andhra Pradesh v. A.S. Peter reported in (2008) 2 SCC 383 (para.9);
Nirmal Singh Kahlon v. State of Punjab and Others reported in (2009) 1 SCC 441 (para.68)
When further investigation necessary?
60.In Vinay Tyagi (supra), it was held that “further investigation” in terms of Section 173(8) of the CrPC can be made in a situation where the investigating officer obtains further oral or documentary evidence after the final report has been filed before the Court. The report on such further investigation under Section 173(8) of the CrPC can be termed as a supplementary report.
62.In Vinubhai (supra); a three-Judge Bench of this Court has endeavoured to lay at rest the controversy enveloping the evasive issue of further investigation directed by the Magistrate.
65. However, the question before this Court is whether sub section (8) of Section 173 of the CrPC permits further investigation after the Magistrate has accepted a final report (closure report) under sub section (2) of Section 173 of the CrPC. The contention raised on behalf of the accused persons is that acceptance of a closure report would terminate the proceedings finally so as to
bar the investigating agency from carrying out any further investigation in connection with the offence.73. In the light of the aforesaid decision of the Supreme Court, it appears that though the order passed by the learned Magistrate accepting a final report under Section 173 is a judicial order, there is no requirement for recalling, reviewing or quashing the said order for carrying out further investigation under Section 173(8) of the CrPC. As held by this Court in the said decision, the provisions of Section 173(8) of the CrPC have been enacted to take care of such like situations also.
Further investigation is allowed even closure report is being filed
- Thus, a conspectus of the aforesaid decisions of this Court rendered in cases where final reports (closure reports) had already been submitted and accepted makes the position of law very clear that even after the final report is laid before the Magistrate and is accepted, it is permissible for the investigating agency to carry out further investigation in the case. In other words, there is no bar against conducting further investigation under Section 173(8) of the CrPC after the final report submitted under Section 173(2) of the CrPC has been accepted. It is also evident, that prior to carrying out a further investigation under Section 173(8) of the CrPC, it is not necessary for the Magistrate to review or recall the order accepting the final report.
Final conclusions on propositions regarding further investigation
- We may summarise our final conclusion as under:
(i) Even after the final report is laid before the Magistrate and is accepted, it is permissible for the investigating agency to carry out further investigation in the case. In other words, there is no bar against conducting further investigation under Section 173(8) of the CrPC after the final report submitted under Section 173(2) of the CrPC has been accepted.
(ii) Prior to carrying out further investigation under Section 173(8) of the CrPC it is not necessary that the order accepting the final report should be reviewed, recalled or quashed.
(iv) Further investigation is merely a continuation of the earlier investigation, hence it cannot be said that the accused are being subjected to investigation twice over. Moreover, investigation cannot be put at par with prosecution and punishment so as to fall within the ambit of Clause (2) of Article 20 of the Constitution. The principle of double jeopardy would, therefore, not be applicable to further investigation.
(v) There is nothing in the CrPC to suggest that the court is obliged to hear the accused while considering an application for further investigation under Section 173(8) of the CrPC.
How to differ with a co-ordinate bench explained
- We would like to extend a word of caution over here. While it is open to a learned Judge to differ with a view of a Co-ordinate Bench the sequitur is to make a reference to a larger Bench on papers being placed before the learned Chief Justice. The learned Judge cannot simply say “with due respect, I do not agree to the ratio…” or “the decision is per incuriam as a binding judgment of the Supreme Court has not been considered….” and proceed to take a contrary view as done in the impugned order. Such an approach would result in conflicting opinions of Co-ordinate Benches, resulting in judicial chaos and is, thus, improper. This is something atrocious and unacceptable.
MERE DELAY IN APPROACHING A COURT OF LAW FOR FURTHER INVESTIGATION WOULD NOT BE A GROUND FOR DISMISSING A CASE
Delay in trial on account of further investigation
83.It was vehemently submitted on behalf of the accused that further investigation if permitted after such a long lapse of time, would result in delay in trial. For years to come, the sword of Damocles should not be kept hanging on the neck of the accused persons. In such circumstances, it was argued before us that keeping in mind that this litigation is now almost more than a decade old, it will not be in fitness of things to put the accused persons to trial.
84.In the aforesaid context, we may only say that the general rule of criminal justice is that “a crime never dies”. The principle is reflected in the well-known maxim nullum tempus aut locus occurrit regi (lapse of time is no bar to Crown in proceeding against offenders). It is settled law that the criminal offence is considered as a wrong against the State and the Society even though it has been committed against an individual. Normally, in serious offences, prosecution is launched by the State and a Court of law has no power to throw away prosecution solely on the ground of delay. Mere delay in approaching a Court of law would not by itself afford a ground for dismissing the case. Though it may be a relevant circumstance in reaching a final verdict (See: Japani Sahoo v. Chandra Sekhar Mohanty reported in (2007) 7 SCC 394).
Party
STATE THROUGH CENTRAL BUREAU OF INVESTIGATION vs. HEMENDHRA REDDY & ANOTHER. ETC – Crl. Apl No: 1300/2023 – APRIL 28, 2023.
https://main.sci.gov.in/supremecourt/2017/27274/27274_2017_4_1513_44146_Judgement_28-Apr-2023.pdf
State through CBI vs. Hemendhra Reddy
Further study
https://demonew.section1.in/magistrate-is-empowered-to-take-cognizance-even-on-the-closure-report-final-report-filed-and-may-issue-process-to-the-accused/
https://demonew.section1.in/procedure-magistrates-shall-not-return-the-final-reports/
https://demonew.section1.in/further-investigation-by-magistrate-u-1563-till-framing-of-charges/
https://demonew.section1.in/cr-p-c-1973-notes-no-9-second-fir-general-propositions-as-to-fir-appreciation-evidentiary-value-of-first-information-report-chapter-xii-part-3-4-5-6/
https://demonew.section1.in/powers-of-magistrate-u-s-1563-direction/
https://demonew.section1.in/powers-of-constitutional-courts-to-transfer-or-order-re-further-investigation-explained/
https://demonew.section1.in/magistrate-shall-consider-both-the-final-reports-and-proceed-further-if-further-investigation-u-s-1738-cr-p-c-shows-the-accused-is-innocent/
https://demonew.section1.in/role-of-de-facto-complainant-during-investigation-and-further-investigation/
https://demonew.section1.in/cognizance-taken-on-the-further-investigation-petition-filed-u-s-1738-cr-p-c-as-protest-petition-is-correct/
https://demonew.section1.in/section-167-crpc-accused-cannot-claim-default-bail-on-the-ground-that-the-further-investigation-against-other-accused-is-pending/
https://demonew.section1.in/in-cross-case-or-case-in-counter-the-i-o-has-to-file-both-the-final-reports-before-the-jurisdictional-magistrate/
https://demonew.section1.in/whether-magistrate-can-take-cognizance-on-private-complaint-even-after-accepting-the-negative-report-filed-by-the-police-and-how-to-write-protest-petition-and-its-appreciation/
